Published in Criminal Law on May 21, 2019.
Sometimes, defendants in criminal cases are offered probation as part of a plea deal that takes the place of jail time.
This can happen when the prosecutor or the judge do not feel that incarceration is warranted but that some form of supervision and possibly counseling are needed.
When probation is ordered there is both a term of probation and a suspended sentence.
When a defendant violates the terms of the probation, it may be considered a slap in the face to the people who gave the defendant the chance to stay out of jail or prison.
Judges and prosecutors often feel as though they have no choice but to violate the individual’s probation and to sentence them to executed time.
On the other hand, a defendant may have had an extenuating reason for an apparent probation violation or there may not have been a violation at all. If that is the case, you will either need to reach an agreement with the state, admit your violation but argue the sanctions to the court or fight the violation in a fact-finding hearing.
Ultimately, it’s important to know what a probation violation sentence could mean for you and what you can do to prevent the judge from throwing the proverbial book at you.
Will You Go to Jail for Violating Probation? How Long is Jail Time for Probation Violation?
It is a distinct possibility. There are a number of factors that go into a judge’s decision to punish a defendant who has violated probation with the jail time. Some of the most important questions are:
- Did your probation violation show willful misconduct? If you are charged with violating probation, you are allowed to contest the charge. Just as you would be in any criminal charge, you are presumed innocent and the prosecution has the burden of proving that you did, in fact, violate your probation. The standard of proof, however, is lower. In a criminal trial, the prosecution must prove beyond a reasonable doubt that you are guilty. At a probation hearing, the prosecution need only prove by a preponderance of the evidence that you violated any term of your probation. In other words, they must prove that it is more likely than not. There are no unimportant terms of probation. On the prosecutor’s side, if they can show your probation violation showed a conscious indifference to the mandates of the court, your chances of seeing jail time for the violation are more likely, especially if the probationer has been charged with or convicted of a new crime.
- Has the probationer previously violated their probation sentence?Probationers can be found to have violated a term or terms of their probation and are given another chance to show the court they can follow the rules given to them. If a court finds that someone has not taken advantage of their second chance the likelihood of an executed is likely to increase.
What Happens if I Have Been Found to Have Violated a Term of My Probation?
If you admit to the probation violation or the court determines you have violated the probation sentence, the court has the discretion to take a wide variety of actions against you. This includes sentencing you to jail or prison, ordering you to community corrections, continuing you on probation or closing out the probation.
The court also has discretion as it relates to the amount of time you may get.
The judge can sentence the probationer up to the suspended sentence. You do not work off time on probation like you do during an executed sentence so even if you violate the probation sentence on your last day the court can still give you your entire backup time. The question as to whether or not the court will sentence you to jail or prison and how much time you receive depends on a number of factors. These include:
- The seriousness of the violation. Not all probation violations are created equally. For instance, if you fail to pay court fees despite your best effort you can not be sentenced to jail. If you are guilty of a drug possession offense and relapse, the court may demand that you go into drug counseling or a rehab program. If, however, you tamper with drug results in order to dupe the court, that shows a willful attempt to deceive the court and the judicial process. If your violation shows a serious disregard for the court proceedings, the court will take that very seriously. For instance, if you are on probation for DUI, but are caught driving under the influence, the court is likely to regard this as an egregious offense because you are putting others at risk.
- A prior probation violation. If this is the second or third time a defendant has violated probation, the chance that the judge will sentence the probationer to jail increases exponentially. It’s important to take court orders seriously. Judges will become less forgiving each time a violation occurs.
- Mitigating circumstances. There are some circumstances where a judge may sympathize with a probationer who has missed a court appearance for a valid reason. For instance, if there was an injury to a child or there was a death in the family. In cases where the violation can be explained due to extenuating circumstances, the judge is far more likely to let the probationer off with a warning.
- Recommendations of the probation agent and prosecution. In a number of circumstances, judges will simply do whatever a probation agent recommends. In other cases, an aggressive prosecutor may recommend a stiff sentence. In either case, it is necessary to have an experienced probation attorney help mitigate any damage that a violation will do.
- The attitude of the judge. Judges can be liberal or conservative and among them, there are certain crimes for which they believe they must take a hardline stance on. An effective defense attorney understands the judges’ predispositions and can effectively argue a position that will resonate with them. It’s incredibly important that you have an experienced defense attorney advocating for you. In addition, if the judge is not in a particularly good mood that day, it could impact how he perceives your violation.
- Mandatory minimum sentences. A judge may be compelled by law to sentence a probationer to jail time if they violate the terms of their probation.
Talk to an Indianapolis Criminal Defense Attorney
Ideally, you don’t want to be caught violating probation. At the very least, it leaves you at the mercy of the court and at the most, it can force you to serve unnecessary time. If you are charged with violating a probation sentence, have an attorney on your side who knows the prosecutors, the judge, and can effectively argue on your behalf will produce far better results than going it alone.
The criminal defense attorneys at Eskew Law have managed several cases just like yours. If you’ve been charged with a probation violation, give us a call or contact us online and we can begin discussing your options today.